Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, there is in the gracious Speech a great deal of interest and concern for one like me who has spent a lifetime in the law, but today I have time to put down only one or two markers.

On criminal justice, I applaud the decision to appoint a royal commission. I hope that it will look at the substantive law and not just at our now disordered procedure, and that it will deal, for example, with the age of criminal responsibility, along with IPPs, which are an enduring problem creating a continuing injustice for many. That said, I recognise that dyed-in-the-wool terrorists—people like the London Bridge killer—and religious zealots driven by ideology, whose reform seemingly can never be assured, may well require life sentences. I suggest that they present a very different problem from that presented by even the most serious sex offenders—Worboys and so forth.

I recognise too the case for a new treason offence and commend Policy Exchange, an admirable body with a number of distinguished contributors, on its work on that. I also support its work on the protection of our Armed Forces and its associated proposals for tinkering with the Human Rights Act in certain important respects—in particular, to deny it retrospective effect and, as Lord Bingham would have done, to deny it extraterritorial application too, save in the most limited circumstances, such as embassies and the like, which we considered years ago in the al-Skeini case.

My central focus today is on the prorogation case, Miller II in the Supreme Court. As everybody recognises, this lies at the heart of the Government’s proposal to establish a constitutional democracy and rights commission, whatever is contemplated by that—as the noble Lords, Lord Wallace and Lord Young of Cookham, and my noble and learned friend Lord Judge have already astutely observed.

The Policy Exchange paper The First Hundred Days asserts somewhat dramatically and, I suggest, overdogmatically:

“The Supreme Court’s prorogation judgment was a recent, startling example of judicial lawmaking, which compromises the integrity of the political constitution.”


It urges its reversal immediately by legislation. In fact, Policy Exchange suggests that, by the same token that Miller threatens powers of prorogation, so too—even when we get rid of the Fixed-term Parliaments Act, as plainly we should—will it threaten dissolution. For my part, I question that.

I confess that I was surprised and remain to a degree uneasy—a good deal more so than my noble and learned friend Lord Judge—about the Miller decision. I still find the also authoritative Divisional Court judgment convincing in many respects on that question. I nevertheless caution strongly against hasty action when it comes to entering upon this very delicate, sensitive and difficult area of the relations between the differing arms of state. Personally, I read the Supreme Court decision as a very narrow one on the facts. It was only really because the Government declined to vouchsafe any basis for Prorogation apart from the manifestly unjustifiable need for seven weeks to write a Queen’s Speech. Only on that limited basis did the court feel entitled to strike it down as manifestly unreasonable—a judgment it felt able to make.

Be that as it may, it would really be a terrible mistake now to rush into hasty legislation or to deal with what some describe as judicial overreach, the Prince of Wales letters case being an obvious one in point. Let these questions simmer a while. Let the various legal, political and constitutional pundits work through the implications to see what precisely may be needed and what will be the unexpected results of any legislation to overcome them. It would not be healthy for our constitution for any branch of the state now to be thought embarking on some power grab. That is the note on which I want to end. I indicate only that, as the months come to pass, there is an awful lot more that I shall hope to say.